I'd like to know if there jurisdiction in a lawsuit for debt collection when the plaintiff misidentified me in the court filing?

Question

I am a defendant in a lawsuit. The plaintiff incorrectly named me as a resident of certain parish and state, of which, by state legal definition,I am not. Can I use this to oppose, in my answer to a motion for summary judgment?

Answer 1

There are basically three issues involved. The defendant in this case clearly loses on two of these three issues. We don't have enough facts in the question, and the related clarifying comment from the person asking the question, to know if the defendant wins or loses on the third issue.

Note also that the fact that some allegations of the complaint are inaccurate, alone, isn't a basis to dismiss the lawsuit. After all, the whole point of court cases and trials is that there are disputes over the accuracy of some of the allegations. To dismiss a complaint, it is necessary not just to prove that the complaint has one or more inaccurate allegations related to jurisdiction and venue. One must affirmatively establish that the court lacks jurisdiction or that the case was filed in an improper venue, with facts. Typically facts are established by submitting affidavit with the motion contesting jurisdiction or venue, at first, and an evidentiary hearing is held on these issues if the facts in the affidavits of the parties are in dispute.

1. Personal jurisdiction.

The U.S. Constitution, and state statutes called "long arm statutes" which are almost always construed to claim jurisdiction for a state's courts to the full extent allowed by the U.S. Constitution, give state courts authority to consider cases only when the state has "personal jurisdiction" over the defendant. If a court lacks personal jurisdiction over a defendant, then the defendant may file a motion to dismiss the case against them without prejudice for lack of personal jurisdiction.

To have personal jurisdiction, the defendant has to have been served with process (somewhere) and the defendant has to have a sufficient connection to the state to be sued there. There are three main ways that this sufficient connection can arise:

• If the defendant is domiciled in a state (which is not the same as residing there 183 or more days a year), the defendant can be sued in their state of domicile on any matter arising in any place in the world. This is called "general jurisdiction." Domicile is a place where you live with an intent to reside their indefinitely going forward, without regard to how long you have lived there.

• If the facts and circumstances of the case have a significant connection to the state where the lawsuit is brought, the defendant can be sued there. Usually this requires actions of the defendant in the state that are related to the lawsuit and show that the defendant "purposefully availed himself" of the benefits and obligations of the laws of that state. In a contract or debt case, the question would be whether the debt concerned a contract entered into in the state or funds loaned for use in the state or to a person domiciled in the state at the time of the loan. This is called "specific jurisdiction."

• If an individual is served with process in a case suing them as an individual, rather than as a representative of an entity or another person, in a state, that state's courts has personal jurisdiction over them. Thissi called "tag jurisdiction."

In this case, Louisiana's state courts have "tag jurisdiction" over the defendant, even if they don't have "general jurisdiction" or "specific jurisdiction" over the defendant. So, fighting the court's personal jurisdiction over the defendant would be futile.

The defense of lack of personal jurisdiction is waived if the defendant files a response to the merits of the case without asserting that the court lacks personal jurisdiction in that initial filing.

2. Venue.

A defendant may file a motion asserting that venue is improper, i.e., that the case was filed in the wrong place within the state where it was filed. The right to complain about an improper venue is waived if the defendant files a response to the merits of the case without asserting that venue is improper in that initial filing.

If this motion prevails, then the case is transferred to a different court in the same state where venue is proper.

If someone is domiciled in a state, state court rules usually require the suit to be commenced in the courts either of the subdivision of a state (in Louisiana, the Parish) where one or more defendants reside, or where circumstances giving rise to the events took place.

If no defendant is not domiciled in the state, and the circumstances of the case have no connection to the case, e.g., in a tag jurisdiction case, then any venue chosen by the plaintiff in the case is a proper venue and a motion claiming an improper venue will fail.

3. Fair Debt Collection Practices Act Venue Requirements.

A federal law known as the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, requires that lawsuits to collect most kinds of consumer debts, when they are within the scope of the act, must be filed in the state and county or parish where the defendant is domiciled. The relevant provision of this act is 15 U.S.C. § 1692j(a) entitled "Venue" which states:

Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

You can file a motion to dismiss without prejudice a lawsuit filed in a place other than where the Fair Debt Collection Practices Act allows it to be filed.

The term resides in the FDCPA is not defined in the act, but is generally interpreted as equivalent to the legal term of art "domicile" defined above.

This federal law does not apply to non-consumer debts. For purposes of this law, a consumer is "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692b(3), and a "consumer debt" is "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment."

The act also does not apply to lawsuits which are not brought by "debt collectors". The term "debt collector" does not apply to the original creditor on the debt, unless the lawyer who brings the lawsuit qualifies as a "debt collector".

The act does not apply to lawsuits bought by someone who is an assignee or purchaser of the debt if "to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another", unless the lawyer who brings the lawsuit qualifies as a "debt collector". But, a U.S. Supreme Court case interpreting this statute has held that someone who purchases a debt for purposes of collecting it themselves without any further connection to the creditor that sold the debt is not a "debt collector."

If a lawyer filing the case for a creditor client "regularly" files lawsuits to collect debts for people other than the lawyer's own law firm, then that lawyer is a "debt collector", however, and the venue limitations of the federal law apply to consumer debts that are the subject of that lawyer's lawsuits. See 15 USC § 1692b(6) and a somewhat involved case law intepreting it.

So, if the creditor suing to enforce the debt is the original creditor to whom the debt is owed, the debt is a consumer debt, the defendant is not domiciled in Louisiana, and the lawyer bringing the lawsuit for this creditor regularly brings debt collection lawsuits, then the lawsuit is improper to file in Louisiana. In that case, a motion to dismiss the lawsuit without prejudice under this theory is proper and should prevail.

But, if the lawyer bringing the lawsuit for this creditor does not regularly bring debt collection lawsuits, or if this debt is not a "consumer debt", then a motion to dismiss for improper venue under the FDCPA will not prevail.

Of course, even if the lawsuit has been filed in the wrong place, and it is dismissed on FDCPA grounds, this doesn't prevent a lawsuit from being refiled in New Mexico.